[2021] KEBPRT 359 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 20 OF 2021 (ELDORET)

JAPHETH KIPKEMBOI SEREM

T/A MUSKUT GROCERIES............................................................TENANT

VERSUS

AIC CHRISTIAN BOOK CETRE LIMITED.........................1ST LANDLORD

THE BOARD OF TRUSTEES AFRICAN INLAND

CHURCH KENYA...................................................................2ND LANDLORD

RULING

1. Before me is an application dated 3rd May 2021 in which the applicant (Japheth Kipkemboi Serem) is seeking that the 1st and 2nd Respondents’ directors be cited for contempt of court and be committed to Civil jail for a term of six (6) months and/or be ordered to purge the contempt of court in terms that this Tribunal will deem fit.

2. The application is supported by the Applicant’s affidavit sworn on 3rd May 2021 and the grounds on the face thereof.

3. The application is opposed through a preliminary objection and a replying affidavit both dated 28th May 2021.

4. The preliminary objection is to the effect that the Tribunal has no powers to punish for contempt and that the Tenant having vacated the premises, the Tribunal lacks jurisdiction to hear and determine the matter.

5. As was held in the Locus Classicus case of the owners of the motor vessel “Joey” –vs- owners of the motor Tugs “Barbara” & “Steve B” (2007) eKLR at page 7/15 jurisdiction is a threshold issue which ought to be dealt with as soon as it is raised by a party or on the court’s own motion.

6. Citing Nyarangi J (as then was), the court held as follows:-

“I think it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized…..of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down (sic) tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction”.

7. This Tribunal’s jurisdiction is conferred by the Landlord and Tenant (shops, hotels and catering Establishments) Act, Cap 301 Laws of Kenya at section 12 thereof.

8. Section 12 (2) of the said Act provides as follows:

“ A Tribunal shall not have or exercise any jurisdiction in any criminal matter or entertain any criminal proceedings for any offence whether under this Act or otherwise”.

9. It is trite law that contempt of court is a quasi criminal offence and the proceedings for its punishment are returnable before the superior court under Section 5 of the judicature Act which provides as follows:-

“(1) The High court and the court of Appeal shall have the same power to punish for contempt as is for the time being possessed by the High Court of Justice in England, and such power shall extend to upholding the Authority and dignity of subordinate courts”.

10. Under Article 169(1)(d) of the Constitution of Kenya 2010, local tribunals are classified as subordinate courts and as such, section 5 of the Judicature Act applies in equal measure to them.

11. In the premises, I find and hold that this Tribunal has no jurisdiction to punish for contempt and proceed to strike out the application dated 3rd May 2021 with costs.

12. The Respondents’ costs are hereby assessed at Kshs.20,000/- against the Applicant.

It is so ordered.

DATED, SIGNED and DELIVER VIRTUALLY THIS 12TH DAY OF AUGUST 2021.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of:

Chemoiyai for Tenant/Applicant

No appearance for the Landlord